Kamaljeet Vs Mc Shimla

2025:HHC:27863

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.16777 of 2024 Date of Decision: 13.08.2025

__________________________________________________________ Kamaljeet …….Petitioner Versus Municipal Corporation, Shimla ….Respondent _________________________________________________________ Coram:_ Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹ For the Petitioner: Mr. Kunal Verma, Advocate. For the Respondent : Mr. Mukul Sood, Advocate. __________________________________________________________

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Sandeep Sharma, Judge (oral):

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Petitioner was appointed as a Peon on contract basis in the respondent Corporation on 24.12.2002. His services were regularized as Peon with effect from 31.1.2012. However, petitioner claimed that duties of a Clerk were being extracted from him, as he was looking after diary and dispatch work and thus, was entitled for regularization on higher post of Clerk. Petitioner filed OA No. 4641 of 2017 before erstwhile Himachal Pradesh Administrative Tribunal, seeking relief of regularisation as Clerk. The Original Application was transferred to this court and registered as CWPOA No. 2823 of 2020, which was allowed by this Court on 8.12.2022, whereby Co-ordinate Bench of this Court directed the respondents to regularize the services of the petitioner as Clerk, after completion of seven years from the date of appointment as Peon on contract basis.

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1 Whether the reporters of the local papers may be allowed to see the judgment?

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Feeling aggrieved, respondent –Corporation preferred LPA No. 34 of 2023, which was dismissed on 4.4.2023.

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Thereafter, two review petitions were filed, one by the respondentCorporation i.e. Review Petition No. 37 of 2023 and another by Gopal Sharma and others i.e. Review Petition No. 47 of 2023. Both the review petitions were allowed vide order dated 24.5.2023. While allowing Review Petition No. 37 of 2023, it was directed that since petitioner had worked on higher post of Clerk with effect from 2010, as such, while considering his case for regularization on higher posts, as per settled law, requisite period of eight years had to be counted from 2010.

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In compliance to direction contained in order dated 24.5.2023, respondent-Corporation ordered regularization of petitioner as Clerk with effect from 31.12.2018, vide order dated 16.6.2023. However, since the petitioner stood already regularized as Peon with effect from 2012, and was drawing regular pay scale attached to that post, respondentCorporation vide order dated 19.9.2023 (Annexure R-1 of reply) refixed the pay of the petitioner and prepared a due-drawn statement of petitioner’s pay, thereby working out recovery of Rs.5,69,251/-, on account of the fact that during the period 2012-2018, petitioner had drawn regular pay scale of Peon, whereas, he was entitled to contractual emoluments. In this process, respondent Corporation apprised the petitioner vide letter dated 28.10.2024 (Annexure P-5), that aforesaid amount shall be recovered from his pay at the rate of Rs.5,000/- per

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month, starting from the month of November, 2024 (payable in December, 2024).

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Petitioner, aggrieved by the order of recovery, has approached this Court, claiming that no recovery can be made from him, in view of the decision rendered by Hon'ble Apex Court in Thomas Daniel v. State of Kerala , (2022 SCC OnLine SC 536), wherein recovery from Class III and IV employees has been held to be bad, in case excess payment was not the result of any misrepresentation or fraud.

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On the other hand, it has been argued on behalf of respondentCorporation that the pay of the petitioner has been rightly fixed on regularisation as Clerk with effect from 2018 since he was entitled to be regularized as such, after rendering ten years of contract services as Clerk and there was no misinterpretation or mis-appreciation of law or rules on the part of the respondent-Corporation.

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Issue regarding recovery on account of excess amount paid, in case of certain categories of employees has been settled by Hon'ble Apex Court in State of Punjab and others v. Rafiq Masih , (2015) 4 SCC 334. It would be relevant to take note of following paragraph of

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Rafiq Masih supra:

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“35. In view of the aforesaid discussion, as held by Hon'ble Supreme Court in Rafiq Masih's case (supra), it is not possible to postulate all situations of hardship, where payments have mistakenly been made by the employer, yet in the following situations, recovery by the employer would be impermissible in law:-

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(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

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(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

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(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

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(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

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(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.

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(vi) Recovery on the basis of undertaking from the employees essentially has to be confined to Class I/Group-A and Class-II/Group-B, but even then, the Court may be required to see whether the recovery would be iniquitous, harsh or arbitrary to such an extent, as would far overweigh the equitable balance of the employer's right to recover.

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(vii) Recovery from the employees belonging to Class-III and Class-IV even on the basis of undertaking is impermissible.

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(viii) The aforesaid categories of cases are by way of illustration and it may not be possible to lay down any precise, clearly defined, sufficiently channelized and inflexible guidelines or rigid formula and to give any exhaustive list of myriad kinds of cases. Therefore, each of such cases would be required to be decided on its own merit.”

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Though, it can be safely inferred that finally the controversy in the case at hand was set at rest in 2023, with the disposal of the review petition filed by the respondent–Corporation and thereafter, on 16.6.2023, services of petitioner were regularized and ultimately impugned order of recovery was issued on 28.10.2024. There it cannot be said that there is any delay in initiating recovery proceedings.

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Another important aspect of the matter is that since it is the petitioner, who assailed the order of regularization as Peon, as such, it can be also inferred that he was in the knowledge of the fact that his pay

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would be refixed on change of designation. Further it is borne from record that petitioner has been able to prove that he was working on higher post of Clerk (on contract basis) only with effect from 2010, as such, he must be in the know of things, that he would be getting benefit of regularization on higher post of Clerk, only after completing requisite contrast service as Clerk.

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That question remains, whether after reaping benefits of judgment passed by this Court in his favour (modified in review), now whether petitioner can avoid returning the excess amount received by him.

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Keeping in view the admitted facts that there was no misrepresentation of facts on the part of petitioner, and the fact that he is borne on a Class III post, present case is squarely covered by dicta passed by Hon'ble Apex Court in Thomas Daniel and Rafiq Masih and thus, it is held that no recovery is permissible from the petitioner, as is being contemplated by the respondent-Corporation.

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Accordingly, the present petition is allowed. Order dated 28.10.2024 (Annexure P-5) is quashed and set aside. Amount if any recovered from the petitioner pursuant to Annexure P-5, dated 28.10.2024 shall be repaid to the petitioner, in one go, within two weeks from today.

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Pending application, if any, shall also stand disposed of.

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(Sandeep Sharma), Judge

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August 13, 2025 (Rajeev Raturi/Vikrant)

Kamaljeet v. Mc Shimla

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Kamaljeet v. Mc Shimla

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